Posted 05/12/2018 by Nicholas Horne
The Foreign Influence Transparency Scheme Legislation Amendment Bill 2018 was introduced in the House of Representatives on 28 November 2018 by the Attorney-General. The Bill seeks to amend the Foreign Influence Transparency Scheme Act 2018 (FITS Act) and the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (NSLA Act). The Bill is supported by the Opposition and passed the House of Representatives on 4 December 2018.
Background
The Foreign Influence Transparency Scheme Bill 2017 (FITS Bill) and the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (NSLA Bill) were introduced into the House of Representatives by Prime Minister Turnbull on 7 December 2017. These Bills were stated to be in response to an unprecedented threat from espionage and foreign interference in Australia.
Significant concerns were raised about the scope of the legislation during inquiries into the FITS Bill and the NSLA Bill undertaken by the Parliamentary Joint Committee on Intelligence and Security. The Committee made numerous recommendations in relation to both the FITS Bill and the NSLA Bill, which the Government accepted in full or in part. Subsequently both Bills were substantially amended by the Government.
Following those amendments the FITS Act received Royal Assent on 29 June 2018, and will commence on 10 December 2018. Different elements of the NSLA Act commence at different points such as the day after Royal Assent (29 June 2018) and following commencement of other legislation (including the FITS Act).
As stated by the Government, the purpose of the FITS Act is to ‘provide transparency for the Australian Government and the Australian public about the forms and sources of foreign influence in Australia’ by introducing ‘registration obligations for persons or entities who have arrangements with, or undertake certain activities on behalf of, foreign principals’.
Purpose of the Bill
In his Second Reading speech on the Foreign Influence Transparency Scheme Legislation Amendment Bill 2018 (the Bill), the Attorney-General stated that the Bill will ‘better give effect to the FITS Act’s underlying purpose, which is to ensure transparency with respect to foreign influence in Australia's governmental and political processes’.
The main effect of the Bill will be to expand the scope of the information to be made publicly available in relation to those registered under the FITS Act registration scheme. The Bill will also reduce the ‘grace’ period for registration by those with registrable arrangements at commencement of the FITS Act (10 December 2018) from six months to the earlier of either:
Under clause 2 the Bill would commence either on the day of Royal Assent or immediately after commencement of the FITS Act, whichever is the later.
Provisions
The FITS Act will establish a registration scheme for persons (individuals and entities) undertaking registrable activities on behalf of foreign principals, or entering into arrangements to do so. Within this, paragraphs 43(1)(a)—(c) of the FITS Act will require the Secretary of the Attorney-General’s Department to generally make the following information publicly available online in relation to persons registered under the scheme:
(a) the name of the person and the foreign principal
(b) a description of the kind of registrable activities the person undertakes on behalf of the foreign principal and
(c) any other information prescribed by the rules for the purposes of this paragraph. (An Exposure Draft of the rules has been released by the Attorney-General.)
The Bill would expand the scope of the register by requiring the Secretary to make such information publicly available not only in relation to current registrants, but also in relation to former registrants who have been registered at any time in relation to a foreign principal (items 1 and 2). Further, the specific information to be made publicly available under paragraph 43(1)(b) above would be broadened to include a description of the kind of registrable activities previously undertaken by current or former registrants as well as activities currently undertaken by current registrants (item 3). Section 44 of the FITS Act will permit (but will not require) the Secretary to correct or update information in the register; under the proposed amendments the Secretary would also be able to correct or update information made publicly available under section 43 (item 4).
The Bill would also amend the NSLA Act, which currently provides that, if at the commencement of the FITS Act an arrangement exists between a person and a foreign principal for the person to undertake registrable activities on behalf of the principal (a registrable arrangement), that person has six months following commencement before they must register under the FITS Act scheme. The Bill would shorten this period to be either three months after commencement of the FITS Act or 14 days after the issue of writs for a House of Representatives or Senate election, whichever occurs first (item 6). The Government has stated that this change is to make sure that ‘the FITS Act scheme includes both existing and new arrangements in time for the next election’.
Retrospective operation of provisions
Under item 5 the amendments in the Bill would apply to currently or formerly registered persons whether they became registered before or after commencement of the amendments, and also to persons who ceased to be registered prior to the amendments commencing. The Explanatory Memorandum to the Bill (p. 8) states that:
This will ensure that historical information will be published in relation to all persons who registered under the FITS Act regardless of when they registered and of when their registration may have ceased. Allowing people to access information about past—not just present—instances of foreign influence registered under the scheme will create a more robust transparency regime and better give effect to the FITS Act’s underlying purpose.